January 3, 2008
CAROL CARUSO AND JOHN CARUSO, PLAINTIFFS-RESPONDENTS,
MICHAEL J. BLANCHARD AND THE CITY OF JERSEY CITY, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6641-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 10, 2007
Before Judges Gilroy and Baxter.
Defendants Michael J. Blanchard and the City of Jersey City appeal from a November 3, 2006 order that denied their motion for remittitur or, in the alternative, for a new trial on damages. We affirm.
On June 5, 2003, plaintiff Carol Caruso*fn1 was proceeding north on Monmouth Street in Jersey City when her vehicle was struck by a sport utility vehicle that was being operated by Jersey City Fire Department battalion chief Michael Blanchard. Blanchard had activated the vehicle's lights and siren. Blanchard, and a number of fire trucks that were following him, were en route to a reported fire at a high-rise building in Jersey City. Although other vehicles pulled over to let the emergency vehicles pass, plaintiff apparently did not hear the sirens or see the red flashing lights. She proceeded into the intersection where her vehicle collided with the emergency response vehicle that Blanchard was operating.
As a result of the collision, plaintiff alleged that she sustained multiple contusions and an injury to her left shoulder. She was evaluated at a local hospital, where x-rays were negative and she was discharged the same day.
Plaintiff underwent a course of physical therapy with Dr. Monica Mehta for a period of six months, which Dr. Mehta described in her testimony. Defendants objected to Mehta's testimony, arguing that neither in plaintiff's answers to interrogatories nor in Mehta's treatment notes, was there any opinion by Mehta of permanency. After plaintiff's counsel assured the judge that there would be no testimony from Mehta as to permanency, the judge overruled the objection. The cross-examination of Mehta was limited to establishing that: plaintiff never lost consciousness after the accident; Mehta is not board-certified; she sees sixty patients per week; of the fifty times Mehta has testified in court, all but two were for a plaintiff; and Mehta was paid by plaintiff to appear in court on plaintiff's behalf.
Despite six months of physical therapy with Dr. Mehta, plaintiff continued to experience pain in her left shoulder and an inability to lift heavier objects, perform household chores and work in the family business.*fn2 As a result, she sought treatment from Dr. Leonard Jaffe, an orthopedic surgeon, in January 2004. Jaffe treated plaintiff conservatively at the beginning, administering anti-inflammatory injections to her left shoulder. When that course of treatment was unsuccessful, Dr. Jaffe performed surgery on plaintiff's rotator cuff in February 2004. During the course of the surgery on plaintiff's shoulder, Jaffe observed a torn muscle that was "catching beneath the archway where [the muscle] exits in the shoulder." He also discovered during the surgery that plaintiff had a "frozen shoulder," which the MRI exam that was performed prior to the surgery had not disclosed. During the surgery, Jaffe used a saw to make a cut in one of the muscles that allowed "the head of the bone to pass beneath it." He also removed the "torn disk" that "sits between the collar bone and the tip of the shoulder."
Jaffe's final examination of plaintiff occurred in February 2005, a year after the surgery. At that time, plaintiff was still in pain and Jaffe diagnosed a five to ten percent limitation in the range of motion of plaintiff's left shoulder. He opined that both the pain and the reduction in range of motion were permanent. Defendants did not call any medical experts to dispute the permanency testimony offered by Dr. Jaffe.
Plaintiff testified that after the surgery, she remained unable to lift her arm over her head, or lift or carry heavy objects. She explained that the pain and limitation of motion in her shoulder left her dependent on her family for the usual routines of her daily life, which included cleaning the house, shopping for food, and doing the laundry. Plaintiff's dependence on her family strained her marital relationship and lessened her own quality of life. She also testified that she and her husband do not go out with other couples because she is "always in pain" and does not "feel good." For an unspecified time before and after her surgery, she was forced to sleep sitting up in a chair, rather than in bed with her husband. She also described an impact on marital relations due to "bad headaches and . . . neck[,] . . . back and shoulder pain [that] affected us."
Plaintiff's husband testified that for a period of six months before the surgery, his wife's shoulder injury interfered with her ability to use the bathroom, forcing him to assist her with toileting functions during that period. In addition, the jury was presented with photographs of a permanent one and one-half inch scar at the surgical site.
During the trial, the judge sustained plaintiff's objection to defendants' attempt to call a firefighter named Jablonski to testify. Jablonski was aboard fire truck 6, which was behind Blanchard's lead vehicle on the way to the fire. Defendant attempted to call Jablonski to testify that not only were sirens and flashing lights operating on Blanchard's vehicle, but all of the ladder trucks that were following behind Blanchard had activated their flashing lights and air horns. Plaintiff objected, arguing that Jablonski's name was not mentioned in any of the discovery provided by defendants. After reviewing defendants' interrogatory answers, the judge sustained plaintiff's objection and barred Jablonski's testimony.
The jury returned a verdict in plaintiff's favor, finding defendants fifty-five percent responsible for the happening of the accident and plaintiff forty-five percent responsible. The jury awarded damages to Caruso in the amount of $740,000 and awarded no damages to her husband on his per quod claim. After molding the verdict to reflect plaintiff's comparative negligence, the judge entered judgment in favor of plaintiff in the amount of $407,000.
Defendants filed a motion for a new trial limited to the issue of damages or, in the alternative, for remittitur. In support of their motion, they argued that the award of $740,000 was so high as to shock the conscience and justify either a remittitur or a new trial on damages. Judge O'Connor denied the motion in an oral opinion:
The defendant has provided some comparable verdicts that [they] argue that the court should consider, the highest of which is one for $320,000. . . . I am not at all persuaded by verdicts in other cases. I cannot possibly make comparison to the facts in those cases. I did not have the opportunity to see the plaintiff in those cases.
But I will observe that the plaintiff in this case I found to be a very forthright witness. She did not, in my opinion, in any way puff or exaggerate her complaints. In fact, if anything, she was very conservative in describing the complaints that she had. She did testify that she was not able to do a lot of things that she had done previously. She was a self-sufficient person. She could do a lot of chores around the house, [and] didn't have to depend on anyone for that.
Subsequent to this accident, all of that changed. She had to depend on her husband for the first . . . six months to even go to the bathroom, could not even go to the bathroom and required his assistance with that.
She had been the office manager for the couple's construction business. She was only able to return to work for a short period of time about a year after the accident and was not able to do the work, and so the couple ended up losing the business because she was the manager, but nevertheless, there is no [economic loss] claim. I simply rely on that to show that her complaints were not minimal. They . . . affected her daily life as well as the activities that they could no longer engage in. They used to socialize, go to Atlantic City, things of that nature and they could no longer do that to the extent that they had prior to the accident.
I find that this award, while high, and certainly higher than what I would award if I were a juror, is not of such a level that I find shocking to the conscience. I am denying the City's motion for a new trial on damages, and I'm denying their request for remittitur.
On appeal, defendants argue that the trial court erred by:
(1) sustaining a jury verdict that shocks the conscience; (2) failing to dismiss the case for not satisfying the Tort Claims Act threshold; (3) failing to bar the testimony of Dr. Mehta; (4) improperly excluding the testimony of Jablonski; and (5) failing to charge the jury on a driver's obligation to yield the right-of-way to an emergency vehicle.
We begin by addressing defendants' second argument, that the judge committed reversible error of law when he failed to dismiss plaintiff's case because her injuries failed to satisfy the damages threshold contained in the Tort Claims Act, N.J.S.A. 59:9-2(d). A trial judge's decision on the law is entitled to no special deference, and we apply the same legal principles that the trial judge did. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The Tort Claims Act (the Act), N.J.S.A. 59:1-1 to :12-3, limits recovery for pain and suffering damages to cases involving "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600." N.J.S.A. 59:9-2(d). In Brooks v. Odom, 150 N.J. 395, 400 (1997), the Court analyzed the proofs a plaintiff must provide in order to satisfy N.J.S.A. 59:9-2(d). The Court was presented with evidence of soft tissue injuries that resulted in persistent complaints of pain, muscle spasm and limited range of motion when performing household chores. Id. at 398-400. The Court accepted the plaintiff's argument that she "experience[d] pain and that the limitation of motion in her neck and back [was] permanent." Id. at 406. The Court explained that a partial loss of a bodily function would satisfy the statutory standard provided that the loss of bodily function was both permanent and substantial. Ibid. The Court nonetheless held that the plaintiff's complaint did not satisfy the damages threshold of N.J.S.A. 59:9-2(d). Ibid. The Court later characterized the plaintiff's complaint in Brooks as merely "a subjective claim for pain and suffering" that failed to satisfy the Act's requirement of a substantial and permanent loss of a bodily function. See Kahrar v. Boro. of Wallington, 171 N.J. 3, 11 (2002).
In Brooks, the Court determined that to recover under the Act for pain and suffering, "a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable. Further, a plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings of discomfort.'"
Id. at 402-03. The Court also held that although the Legislature did not intend to require a total loss of a bodily function, it also did not intend that "a mere limitation on a bodily function would suffice." Brooks, supra, 150 N.J. at 406.
Three years after its decision in Brooks, the Court had the occasion in Gilhooley v. County of Union, 164 N.J. 533 (2000) to again analyze the damages threshold contained in N.J.S.A. 59:9-2(d). The Court reviewed the criteria that had been established in Brooks. Id. at 540-41. After "recap[ping]" the Brooks criteria, the Court held that in order to recover under the Act, a plaintiff must prove: "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Ibid. The Court observed that "[e]ach case is fact sensitive," and not "every objective permanent injury" will "result in substantial loss of a bodily function." Id. at 541. The Court observed, as an example, that the plaintiff in Brooks satisfied one prong of the Brooks standard, but failed to satisfy the other. Ibid.
In the years following the Court's decisions in Brooks and Gilhooley, the Court continued to have occasion to evaluate whether a plaintiff's injuries satisfied the N.J.S.A. 59:9-2(d) threshold. In Kahrar, supra, the Court was presented with the issue of whether the plaintiff had satisfied the threshold for awarding pain and suffering damages under N.J.S.A. 59:9-2(d) based on an injury identical to that presented here, namely a torn rotator cuff that was surgically repaired. 171 N.J. at 5. The Court reversed the dismissal of the plaintiff's cause of action and concluded that plaintiff had presented objective proof of a "permanent and substantial loss of a bodily function." Id. at 16.
In Kahrar, the plaintiff sustained a "massive tear" of the rotator cuff, which exposed a significant portion of the top of the ball portion of her shoulder. Id. at 6. The surrounding tendon "was thickened and inflamed." Ibid. As a result of those injuries, the plaintiff underwent surgery during which the surgeon "removed a portion of the bone in her shoulder and re-attached the severed tendon to the shoulder," which "shortened the length of the tendon [and] reduced the function of the patient's arm movement." Id. at 7.
Three months after the surgery, Kahrar's surgeon described Kahrar's forward flexion, which is the raising of the arm forward and upward, as measuring only 120 degrees compared with 170 degrees for the other arm. Ibid. Similarly, external rotation with the arm "abducted" measured forty-five degrees, compared with eighty degrees for the other arm. The Court explained the term "abducted" as moving the arm horizontally with the elbow at the side, and extending the hand sideways. The plaintiff's surgeon concluded that the loss of motion in her left arm was "medically significant." Ibid. A surgeon examining the plaintiff on behalf of the defendant agreed that plaintiff had sustained an approximately forty percent loss of full motion in her left shoulder, which was attributable to weakness in the re-attached tendon. Id. at 8. Kahrar described difficulty when performing her normal household tasks, and she required her husband's or children's assistance to clean, vacuum and move furniture. Id. at 8. In addition to her difficulty in performing normal household tasks, Kahrar also described difficulty with driving, sleeping through the night without pain, reaching certain areas of her body, and continuing her woodworking and furniture-stripping hobbies. Id. at 8-9.
When the Court reversed our affirmance of the dismissal of Kahrar's complaint, it rejected the defendant's argument that Kahrar had not suffered an injury that was substantial, as required by Brooks, supra, 150 N.J. at 406. Id. at 14. The defendant argued that because plaintiff had only sustained a forty percent reduction in the full use and rotation of her shoulder, she had not satisfied the damages threshold of N.J.S.A. 59:9-2(d). Ibid. The Court disagreed and reasoned that:
Brooks should not be understood to suggest that plaintiffs with permanent and substantial impairments who, nevertheless, can manage to perform adequately routine tasks at work and at home are barred from recovery. If the loss of bodily function is permanent and substantial . . . a plaintiff's eligibility to recover pain and suffering damages will not be defeated merely because she can perform some routine functions almost as well as she could prior to her injury. [Id. at 15.]
As the Court observed in Kahrar, the rotator cuff muscles "are implicated whether the subject is throwing a ball, raising a window shade, or simply reaching behind his or her back." Id. at 15-16. Accordingly, a significant loss of use of that muscle group can constitute a substantial injury, provided that the loss of use is permanent. The Court held:
The record reveals the seriousness of plaintiff's rotator cuff tear, the invasiveness of the surgery and that the reattachment of the severed tendon shortened its length. Thus, despite the successful surgery that alleviated plaintiff's pain, her ability to use her arm to complete normal tasks has been significantly impaired because plaintiff has lost approximately forty percent of the normal range of motion in her left arm. That reduction in normal function appears to be both permanent and substantial. We cannot conceivably impute to the Legislature an intention to deprive plaintiffs who sustain permanent injuries of that quality, and that are so clearly susceptible to objective medical evaluation and confirmation, of the opportunity to recover pain and suffering damages from an otherwise responsible public entity defendant. We therefore find that plaintiff has adequately demonstrated a permanent and substantial loss of a bodily function. [Id. at 16.]
With the principles of Kahrar in mind, we turn to an analysis of whether plaintiff's injuries satisfy the damages threshold contained in N.J.S.A. 59:9-2(d). We begin that analysis by noting that the injury plaintiff sustained here was the same type of injury that the plaintiff sustained in Kahrar. Like the plaintiff in Kahrar, plaintiff sustained a tear to one of the muscles that is part of the rotator cuff. Additionally, like the plaintiff in Kahrar, whose tendon was "thickened and inflamed," id. at 6, plaintiff here sustained a "hypertrophic thickening" where the tendons meet the tip of the acromion joint. Because of the rotator cuff tear, plaintiff's muscles were "catching beneath the archway where it exits in the shoulder" causing a "frozen shoulder." Thus, the objective signs of injury here are nearly identical to those that we found "objective" in Kahrar.
The "permanent injury" that Brooks requires was satisfied in Kahrar by evidence of the surgeon's examination of the plaintiff after the surgery and his observation that the plaintiff had limitations in her ability to rotate her shoulder and move her arm horizontally. 171 N.J. at 7. The same type of proof was presented here. Accordingly, in keeping with Kahrar, we likewise find that here plaintiff has demonstrated a permanent injury by objective evidence.
Defendant argues that even if plaintiff's injury is found to be demonstrated through objective evidence, Dr. Jaffe's testimony on the question of permanency was equivocal and therefore not sufficient to satisfy the Brooks requirement of a permanent injury. In particular, defendant points to a portion of the cross-examination in which Dr. Jaffe was asked whether there was still some uncertainty about whether or not plaintiff's injury was permanent. In answer to that question, Dr. Jaffe stated "there's always a chance that it can recover and there's always a chance that it can't. It just--but, at that point, we didn't have anything to offer her to continue medical care." On redirect, Dr. Jaffe stated that based upon what he found during his final examination of plaintiff in August 2005, "she is going to have a permanent residual." In light of that testimony, we reject defendants' contention that Dr. Jaffe's conclusion did not satisfy the Brooks requirement of a permanent injury.
Defendants further argue that even if we were agree that plaintiff's injury is an objective permanent injury, thereby satisfying the first Brooks factor, plaintiff's proofs do not establish a "substantial" injury, thereby failing to satisfy the second Brooks factor. In Kahrar, the Court held that the plaintiff's loss of forty percent of the normal range of motion in her left arm constituted an injury that was "substantial." Ibid. The plaintiff in Kahrar experienced the same difficulties that plaintiff here described. Both experienced difficulty when performing normal household tasks; both depended on family members to help them clean, vacuum or move furniture; and both described difficulty in lifting their arm above a certain point. The only difference between the plaintiff in Kahrar and plaintiff here is the forty percent reduction in range of motion there, compared to the five to ten percent reduction here.
We note, as the Court observed in Gilhooley, supra, 164 N.J. at 541, "[e]ach case is fact sensitive." There are no per se rules. We do not interpret the Court's opinion in Kahrar as establishing a bright line percentage threshold of forty percent, below which all other claims of reduced range of motion would be deemed insufficient. Instead, the Court's conclusion in Kahrar that the plaintiff satisfied the damages threshold of N.J.S.A. 59:9-2(d) was based upon the Court's assessment of the invasive nature of the surgery, the seriousness of the rotator cuff tear, and the resulting physiological sequelae of the surgery. Kahrar, supra, 171 N.J. at 16.
Those same factors are present here. Although the plaintiff in Kahrar sustained a forty percent reduction in the normal range of motion in her left arm, compared to a five to ten percent reduction here, we do not view that difference as one that makes plaintiff's injuries here less than substantial. Instead, we view plaintiff's injury here, and its sequelae, as falling on the "continuum of cases" in which the Court has determined that an injury is substantial and permanent. Knowles v. Mantua Twp. Soccer Ass'n., 176 N.J. 324, 331 (2003). Plaintiff here, like the plaintiff in Kahrar, faces significant limitations in her ability to perform tasks she once was able to complete without difficulty. Her injury, like the plaintiff in Kahrar, is permanent. We decline to adopt the type of per se rule, or percentage threshold, that defendants urge.
We do not interpret the Court's opinions in Knowles, Ponte v. Overeem, 171 N.J. 46 (2002) or Gilhooley as requiring a different result. Plaintiff's injury here is no less serious than the herniated disc deemed sufficient in Knowles, where the injury caused numbness in the plaintiff's right leg and substantial limitation of his daily life as a result. Knowles, 176 N.J. at 331-33.
In Gilhooley, the Court concluded that plaintiff's fractured patella, which required the surgical insertion of pins in order to repair it, satisfied the damages threshold of N.J.S.A. 59:9-2(d), even though the surgery was successful and restored the plaintiff's knee to its pre-injury functionality. 164 N.J. at 542. The Court rejected the defendant's claim that the plaintiff was "good as new," holding that because her knee could not function without the pins and wires, she sustained a substantial and permanent injury. Ibid. Here, the extent of plaintiff's permanent impairment exceeds the impairment the Court found sufficient there.
The plaintiff in Ponte was found not to satisfy the damages threshold of the Act when successful arthroscopic surgery resulted in "knee motion [that] was almost full[,] with minimal pain." 171 N.J. at 49. Here, in contrast, plaintiff's surgery was far more invasive, she does not have "almost full" use of her shoulder, and she continues to experience considerable pain radiating down her arm.
Finally, plaintiff's rotator cuff tear here is "conducive to medical verification as a structural injury," Knowles, supra, 176 N.J. at 333, much like the fractured patella in Gilhooley, the herniated disc in Knowles, and the torn rotator cuff in Kahrar, and unlike the soft tissue injuries deemed inadequate in Brooks.
Accordingly, we conclude that the trial judge was correct when he denied defendants' motion to dismiss plaintiff's case before it went to the jury.
We turn next to defendants' argument that the trial judge erred when he denied their motion for remittitur or, in the alternative, a new trial on the issue of damages. Defendants assert that the trial court committed reversible error when it sustained a jury verdict which, according to defendants, "shocked the conscience." They argue that plaintiff "was treated for minor injuries at the scene and sustained an injury with de minimus permanency and, at best, a minimal loss of bodily function." They further assert that plaintiff's own expert opined that she sustained merely a five to ten percent loss of the full use of range of motion of her arm, and that her substantive complaints, to which she testified at trial, were inconsistent with and beyond her expert's opinion. Defendants contend that the jury award of $740,000 was "grossly disproportionate to the injuries sustained" and "was the improper product of bias and passion, as well as unfounded sympathy for the victim far beyond the actual injuries sustained and described by Dr. Jaffe." Consequently, they argue, the trial judge's denial of their motion for a new trial or, in the alternative, remittitur was error.
We agree with defendants' argument that compensatory damages should "encompass no more than the amount that will make the plaintiff whole, that is, the actual loss." Caldwell v. Haynes, 136 N.J. 422, 433 (1994). Fair compensatory damages should not reward a plaintiff or punish a defendant, but should be commensurate with a plaintiff's losses. Ibid.
When a court is presented with a defendant's motion for remittitur, "a trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock [the judge's] conscience and to convince [the judge] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). Judges must not intrude upon or disturb a jury's award of damages unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." Ibid. (quoting R. 4:49-1(a)).
As the Court noted in Baxter, "judges are admonished to resist the natural temptation to substitute their judgment for that of the jury." Id. at 597. Because "[t]he judgment of the initial fact-finder[,] . . . a jury, . . . is entitled to very considerable respect[,] [that verdict] should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence." Ibid. Only when the "continued viability of the judgment would constitute a manifest denial of justice," id. at 597-98, should the jury's verdict be set aside.
In Baxter, the Court explained the historic underpinnings of that approach:
The comparative strictness of these rules is historic in nature, with roots deep in the common law. In the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework. Of course, such verdict is not sacrosanct and can never survive if it amounts, manifestly, to a miscarriage of justice. The resolution of this latter question is reposed in the courts. Respect for our constitutional system requires that this obligation be approached, in all contingencies, with utmost circumspection, lest the courts intrude upon responsibilities which have traditionally, intentionally and constitutionally been vested in a jury of citizens. [Id. at 598.]
The Court provided numerous examples of factors that would provide a factual basis for a judge to repudiate a jury's verdict: "the incredible testimony offered by a party, the overwhelming weight of the evidence with respect to a certain fact, [or] the failure of a party to produce any countervailing medical or other expert testimony." Id. at 598-99. On appeal, we apply the same standard that the trial judge applies. Id. at 599. In making our evaluation, we do, however, recognize "that the trial judge has one advantage over the appellate court." Id. at 600. Our review "depends upon the cold record," whereas the trial judge has a "feel of the case." Ibid.
With these principles in mind, we turn to a consideration of Judge Edward O'Connor's reasons for denying defendants' motion. In his comprehensive oral opinion, the judge provided a well-reasoned explanation for his decision. He pointed to the uncontroverted medical proofs of plaintiff's permanent five to ten percent loss of use of her left shoulder; the impact that injury has had on her life and on her marital relationship; and plaintiff's overall credibility. Indeed, Judge O'Connor characterized plaintiff as a "very forthright witness" who "did not . . . in any way puff or exaggerate her complaints."
In concluding that plaintiff sustained a substantial injury, the judge pointed to plaintiff's inability to complete household chores, and observed that plaintiff was forced to depend on her husband for six months "to even go to the bathroom." As further evidence of a substantial injury, the judge pointed to plaintiff's inability to work in the family business, which ultimately caused plaintiff and her husband to shut down his construction business. Under these circumstances, we have been presented with no meritorious basis upon which to disagree with Judge O'Connor's determination that the verdict, "while high and certainly higher than what I would award if I were a juror," is not of "such a level that [it is] shocking to the conscience."
Here, where plaintiff's description of the impact the injury has had on her life is largely uncontradicted, where there was no exaggeration or malingering apparent, where no countervailing medical evidence was offered by defendants, and where the trial judge's "feel of the case" led him to find plaintiff to be extremely credible, we are not prepared to say that the verdict of $740,000, although high, should be disturbed. Nor have we been presented with any meritorious basis to disturb the trial judge's conclusion that it did not "clearly and convincingly appear that there was a miscarriage of justice under the law." See R. 4:49-1(a). We reject defendants' arguments to the contrary.
Defendants' final argument is that two errors by the trial judge in the admission of evidence, and his failure to charge the jury appropriately, constituted plain and reversible error. In particular, defendants point to the judge's failure to bar the testimony of Dr. Mehta, his improper exclusion of the testimony of Jablonski, and his failure to charge the jury on a driver's obligation to yield the right-of-way to an emergency vehicle.
We have considered those arguments in light of the record and applicable law, and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. As to defendants' claim that the judge erred because he did not charge the jury on a driver's obligation to yield the right-of-way to an emergency vehicle, that claim is devoid of merit. The record demonstrates that the judge provided the jury with a complete instruction on the duty to yield that is set forth in N.J.S.A. 39:4-91(a). As to defendants' claim regarding the barring of Jablonski's testimony, we note that, contrary to defendants' arguments on appeal, their interrogatory answers did not fairly put plaintiff on notice that Jablonski had relevant knowledge of the happening of the accident and might be called to testify as a defense witness. Decisions to bar or admit evidence are subject to an abuse of discretion standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We perceive no error in the judge's decision to bar Jablonski's testimony, much less an abuse of discretion.
As to the judge's refusal to bar the testimony of Dr. Mehta, defendants' only objection at the time of trial was to Dr. Mehta offering testimony on the permanency of plaintiff's injuries because she had not provided an expert report on that subject. Trial testimony never exceeded those boundaries, and defendants' remaining arguments about her testimony are not "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we decline to address them. Ibid.